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Guilty plea could set up double jeopardy fight in Capitol riot case

Lucas Denney pleaded guilty Thursday to one felony count of assaulting police with a dangerous weapon. That may not stop the DOJ from bringing more charges.

WASHINGTON — A Texas militia member pleaded guilty Thursday to one felony count of assaulting police with a dangerous weapon – a move that could result in years of prison time and potentially set up a legal fight over double jeopardy.

Lucas Denney appeared for the second time in a week before U.S. District Judge Randolph Moss to enter his plea. He’d upended an earlier hearing on Monday meant to be about dismissing the criminal complaint against him when one of his attorneys said he intended to plead guilty instead.

Denney’s attorney, William Shipley, told Moss the Justice Department had acted in bad faith earlier in the month when they’d rushed to a federal grand jury to get a one-count indictment against Denney, who had initially been charged with seven felonies. Shipley said Denney intended to plead guilty that day in an effort to preempt the government from seeking a new indictment on additional felony charges.

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Moss was skeptical about that plan, and reset the hearing for Thursday to give him time to research the issue and for lawyers for both sides to come up with estimated sentencing guidelines. On Wednesday, assistant U.S. attorney Jennifer Rozzoni filed a brief estimating Denney could face a recommended sentence of 57-71 months in prison if he pleaded guilty to assaulting police on Jan. 6. Shipley estimated it lower, at 41-51 months.

On Thursday, after repeatedly asking Denney if he understood what he was doing, Moss accepted his guilty plea. Because the charge is a violent felony, Moss ordered Denney to remain in custody while he awaits sentencing, which was set for June 9.

An issue that remained unresolved was whether federal prosecutors could continue to seek the additional six charges, even though Denney had pleaded guilty to one count in connection to the riot. Moss pointed out that, in a normal plea hearing, both sides would have agreed to a deal preventing additional prosecution for specific circumstances in question. Denney has no deal in place with the government and the prosecutor, Rozzoni, indicated the DOJ was still looking at whether to pursue additional charges against him. Those charges could include civil disorder, conspiracy to obstruct and official proceeding and disorderly conduct in a restricted building or grounds resulting in significant bodily injury – all felonies.

But Shipley, who served as a federal prosecutor himself for 20 years before taking up private practice in Hawaii, said he believed Denney would be immune from further prosecution under double jeopardy – a legal principle that prevents re-prosecution for the same crime.

The standard for double jeopardy in the United States was set in the Supreme Court’s 1932 “Blockburger v. United States” decision. It established the “same elements test” in a unanimous opinion written by Justice George Sutherland, who wrote: “The applicable rule is that, where ethe same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”

Even Shipley acknowledged though, under questioning from Moss, that circuit courts have split on whether double jeopardy would prevent prosecutors from coming back and indicting Denney on counts from the original criminal complaint. Shipley said courts had ruled 5-3 in favor of his position – that they can’t – but that the D.C. Circuit Court had not taken up the issue.

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